AFSCME Locals Sue Nutter: Furloughs â€˜Unconstitutionalâ€™

BITTER resentment by Phila. city employees over Mayor Michael Nutter’s cost-containment policies has finally triggered a lawsuit by their unions charging Mayor’s furlough-at-will measures are unconstitutional. Photo by Rory McGlasson

Long stung by Mayor Michael Nutterâ€™s cost-saving measures, city workers have decided to sting back in court.

The Center City law firm Willig, Williams & Davidson, representing AFSCME Local Union 2186 and AFSCME District Council 47, has filed suit with the US District Court for the Eastern District of Pennsylvania seeking relief from the Cityâ€™s â€œcomplete and unabashed derogation of AFSCME membersâ€™ property rightsâ€ enacted under Philadelphia Civil Service Regulation 16. The suit was filed late Friday afternoon, Jan. 25.

Its target is the unlimited furlough provisions recently enacted by the Civil Service Commission which â€œgrants unfettered discretion to the City to furlough AFSCMEâ€™s members, prohibits AFSCMEâ€™s members from earning or receiving compensation during the furlough period, lacks any procedures or criteria to effectuate furloughs and prohibits AFSCMEâ€™s members from appealing a furlough at any time and under any circumstances is, on its face, unconstitutional under both the United States and Pennsylvania Constitutions,â€ in the lawsuitâ€™s words.

The lawsuit seeks to enforce city workersâ€™ Constitutional claim â€œnot to be deprived of their property interest in continued employment without due process.â€ Public employees have a property interest in their continued government employment pursuant to the just clause provisions of the Home Rule Charter, the Pennsylvania Constitution (Article 1, Sections 1 & 26) and the 14th Amendment of the US Constitution, the suit alleges.

Prior to the new Civil Service Regulations, AFSCME members could appeal a layoff when the layoff did not comply with â€˜the required procedureâ€™ or â€˜the layoff has not been made in good faith or was otherwise improper,â€™ Willig, Williams stated in its brief.

The new provisions basically state any employee can be furloughed at the whim of any manager for any reason, at any time and for any duration and thereâ€™s nothing the employee can say about it before, during or after.

â€œIf an employeeâ€™s supervisor has a personal grudge against an employee, does that justify arbitrarily taking someoneâ€™s employment and compensation from them?â€ said Bob Bedard, a spokesman for DC 47. â€œWhere is the Charter-driven â€˜just causeâ€™ for these layoffs?â€

Rubbing salt into the wound, the new provisions â€œprohibit furloughed AFSCME members from obtaining compensation from outside employmentâ€ during the furlough according to the lawsuit.

Among the Nutter contract provisions imposed on Local 2186 members is the right to furlough any member for unlimited days in any Fiscal Year. Additionally, under the new provisions, AFSCME members will not be paid for any recognized holiday if that holiday occurs while the member is on furlough.

Named as defendants in the lawsuit are the City; Nutter; Albert L. Dâ€™Attillo, the cityâ€™s director of human resources; and the Philadelphia Civil Service Commissionâ€™s members Doris A. Smith, Lynda Orfanelli and Pedro A. Rodriquez.

As remedy, the suit seeks that the provisions be declared unconstitutional and that the defendants be prohibited from implementation and any other relief the Court deems proper and just.

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